HomeMy WebLinkAboutAgreement A-18-333 with Godfred Masinde PhD.pdf Agreement No. 18-333
1 AGREEMENT
2 THIS AGREEMENT is made and entered into this 12th day of June , 2018,
3 by and between the COUNTY OF FRESNO, a Political Subdivision of the State of California,
4 hereinafter referred to as "COUNTY", and Godfred L. Masinde, PhD, an individual, whose address
5 is 700 Cabada Drive, Brentwood, California, 94513, hereinafter referred to as "CONTRACTOR".
6 WITNESSETH:
7 WHEREAS, COUNTY, through its Department of Public Health (DPH), operates a Public
8 Health Laboratory (PHL)which provides both clinical and dairy testing; and
9 WHEREAS, DPH PHL is in need of a Laboratory Director to perform the duties and
10 responsibilities of the Laboratory Director and meets all required qualifications to oversee clinical and
11 dairy testing as well as the COUNTY's DPH Level-B Bioterrorism Laboratory and a Regional Level-2
12 Laboratory for the State and National Laboratory Response Network(NLRN); and
13 WHEREAS, it is common practice for California counties to utilize an independent contractor
14 to perform the duties and responsibilities of its Laboratory Director; and
15 WHEREAS, CONTRACTOR represents that he has all required qualifications and is willing to
16 provide such services, pursuant to the terms and conditions of this Agreement; and
17 WHEREAS, CONTRACTOR currently provides Laboratory Director services to COUNTY,
18 under Agreement No. P-17-330-L, which expires June 30, 2018; and
19 WHEREAS, CONTRACTOR and COUNTY have developed this successor Agreement to
20 become effective upon expiration of the existing Agreement; and
21 NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions herein
22 contained, the parties hereto agree as follows:
23 1. OBLIGATIONS OF THE CONTRACTOR
24 A. CONTRACTOR shall meet and maintain the required certifications for Clinical
25 Laboratory Improvement Amendments (CLIA) and all state, federal and local required qualifications
26 throughout the term of this Agreement.
27 B. Under the terms and conditions of this Agreement, CONTRACTOR shall
28 provide services for the DPH PHL, encompassing Laboratory Director activities and oversight as
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1 follows:
2 1. Provide general consultation on state and federal CLIA requirements for
3 licensing and assist with preparations for inspections, reviews and applications related to laboratory
4 certifications as required;
5 2. Review of PHL operations, procedures, and protocol to verify
6 compliance with applicable regulations and consult with COUNTY DPH Director or designee
7 (Department designee) regarding findings and recommendations, as needed;
8 3. Evaluate, analyze, and develop of policies,procedures, and reports, as
9 required, to ensure compliance with state and federal requirements;
10 4. Provide consultation on evaluation of a Laboratory Information
11 Management System;
12 5. Provide consultation in organizing the PHL to meet Lean Principles
13 throughout physical work environment and systems of operation;
14 6. Train laboratory staff on laboratory methodologies and techniques, as
15 required;
16 7. May perform the duties of the technical supervisor, clinical consultant,
17 and testing personnel;
18 8. Consult in the event of an emergency in the PHL and/or local
19 emergencies requiring modified or accelerated testing, protocols and/or processes;
20 9. Be accessible to the Department via cell phone, landline phone,pager,
21 email or facsimile 24 hours, 7 days a week during the term of this Agreement. If CONTRACTOR is
22 not available during these time periods, it must be prearranged by Department designee; and
23 10. Perform site visits of PHL to evaluate operations are efficient and
24 compliant with applicable State and Federal regulations. Onsite visits will be coordinated with
25 Department designee.
26 2. TERM
27 The term of this Agreement shall be for a period of two (2)years, commencing on July
28 1, 2018 through and including June 30, 2020. This Agreement may be extended for two (2) additional
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1 consecutive twelve (12) month periods upon written approval of both parties not later than thirty (30)
2 days prior to the first day of the next twelve (12)months extension period. The DPH Director or his
3 or her designee is authorized to execute such written approval on behalf of COUNTY based on
4 CONTRACTOR'S satisfactory performance.
5 3. TERMINATION
6 A. Non-Allocation of Funds - The terms of this Agreement, and the services to be
7 provided thereunder, are contingent on the approval of funds by the appropriating government agency.
8 Should sufficient funds not be allocated, the services provided may be modified, or this Agreement
9 terminated at any time by giving CONTRACTOR thirty(30) days advance written notice.
10 B. Breach of Contract - COUNTY may immediately suspend or terminate this
11 Agreement in whole or in part, where in the determination of COUNTY there is:
12 1) An illegal or improper use of funds;
13 2) A failure to comply with any term of this Agreement;
14 3) A substantially incorrect or incomplete report submitted to COUNTY;
15 4) Improperly performed service.
16 In no event shall any payment by COUNTY constitute a waiver by COUNTY of any
17 breach of this Agreement or any default which may then exist on the part of CONTRACTOR. Neither
18 shall such payment impair or prejudice any remedy available to COUNTY with respect to the breach
19 or default. COUNTY shall have the right to demand of CONTRACTOR the repayment to COUNTY
20 of any funds disbursed to CONTRACTOR under this Agreement, which in the judgment of COUNTY
21 were not expended in accordance with the terms of this Agreement. CONTRACTOR shall promptly
22 refund any such funds upon demand or, at COUNTY's option, such repayment shall be deducted from
23 future payments owing to CONTRACTOR under this Agreement.
24 C. Without Cause -Under circumstances other than those set forth above, this
25 Agreement may be terminated by COUNTY upon the giving of thirty(30) days advance written notice
26 of an intention to terminate to CONTRACTOR.
27 4. COMPENSATION
28 COUNTY agrees to pay CONTRACTOR and CONTRACTOR agrees to receive
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1 compensation as follows:
2 For the period of July 1, 2018 through and including June 30, 2019, Seven Thousand,
3 Seven Hundred and No/100 ($7,700.00)per month. In no event shall actual services performed under
4 this Agreement be in excess of Ninety-two Thousand, Four Hundred and No/100 ($92,400.00) during
5 the period of July 1, 2018 through June 30, 2019 of this Agreement.
6 For the period of July 1, 2019 through and including June 30, 2020, and each subsequent
7 twelve month period thereafter, Eight Thousand, Eighty-five and No/100 ($8,085.00)per month. In
8 no event shall actual services performed under this Agreement be in excess of Ninety-seven Thousand,
9 Twenty and No/100 ($97,020.00) during the period of July 1, 2019 through and including June 30,
10 2020 of this Agreement, and each subsequent twelve month period thereafter.
11 It is understood that all expenses incidental to CONTRACTOR's performance of actual
12 services under this Agreement shall be borne by CONTRACTOR.
13 Payments by COUNTY shall be in arrears, for services provided during the preceding
14 month, within forty-five (45) days after receipt and verification of CONTRACTOR's invoices by
15 COUNTY's Department of Public Health. If CONTRACTOR should fail to comply with any
16 provision of this Agreement, COUNTY shall be relieved of its obligation for further compensation.
17 If notice is given to terminate this Agreement within the calendar month, the base
18 monthly compensation shall be calculated by the COUNTY on a prorated basis for actual days of
19 service provided by the CONTRACTOR. The CONTRACTOR agrees to receive compensation in
20 accordance with the prorated calculation.
21 5. INVOICING
22 CONTRACTOR shall invoice COUNTY monthly, addressed to the County of Fresno,
23 Department of Public Health, Community Health, P.O. Box. 11867, Fresno, CA 93775, Attention:
24 Community Health Division Manager.
25 6. INDEPENDENT CONTRACTOR
26 In performance of the work, duties, and obligations assumed by CONTRACTOR under
27 this Agreement, it is mutually understood and agreed that CONTRACTOR, including any and all of
28 CONTRACTOR's officers, agents, and employees will at all times be acting and performing as an
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1 independent contractor, and shall act in an independent capacity and not as an officer, agent, servant,
2 employee,joint venturer,partner, or associate of the COUNTY. Furthermore, COUNTY shall have
3 no right to control or supervise or direct the manner or method by which CONTRACTOR shall
4 perform its work and function. However, COUNTY shall retain the right to administer this
5 Agreement so as to verify that CONTRACTOR is performing its obligations in accordance with the
6 terms and conditions thereof.
7 CONTRACTOR and COUNTY shall comply with all applicable provisions of law and
8 the rules and regulations, if any, of governmental authorities having jurisdiction over matters which
9 are directly or indirectly the subject of this Agreement.
10 Because of its status as an independent contractor, CONTRACTOR shall have
11 absolutely no right to employment rights and benefits available to COUNTY employees.
12 CONTRACTOR shall be solely liable and responsible for providing to, or on behalf of, its employees
13 all legally-required employee benefits. In addition, CONTRACTOR shall be solely responsible and
14 save COUNTY harmless from all matters relating to payment of CONTRACTOR's employees,
15 including compliance with Social Security, withholding, and all other regulations governing such
16 matters. It is acknowledged that during the term of this Agreement, CONTRACTOR may be
17 providing services to others unrelated to the COUNTY or to this Agreement.
18 7. MODIFICATION
19 Any matters of this Agreement may be modified from time to time by the written
20 consent of all the parties without, in any way, affecting the remainder.
21 8. NON-ASSIGNMENT
22 Neither party shall assign, transfer or subcontract this Agreement nor their rights or
23 duties under this Agreement without the prior written consent of the other party.
24 9. HOLD-HARMLESS
25 CONTRACTOR agrees to indemnify, save, hold harmless, and at COUNTY's request,
26 defend the COUNTY, its officers, agents and employees from any and all costs and expenses,
27 including attorney fees and court costs, damages, liabilities, claims and losses occurring or resulting to
28 COUNTY in connection with the performance, or failure to perform, by CONTRACTOR, its officers,
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1 agents or employees under this Agreement, and from any and all costs and expenses, including
2 attorney fees and court costs, damages, liabilities, claims and losses occurring or resulting to any
3 person, firm or corporation who may be injured or damaged by the performance, or failure to perform,
4 of CONTRACTOR, its officers, agents or employees under this Agreement.
5 10. INSURANCE
6 Without limiting the COUNTY's right to obtain indemnification from CONTRACTOR
7 or any third parties, CONTRACTOR, at its sole expense, shall maintain in full force and effect the
8 following insurance policies throughout the term of this Agreement. CONTRACTOR's liability is not
9 to exceed the insurance coverage limits defined below:
10 A. Commercial General Liability
11 Commercial General Liability Insurance with limits of not less than One Million
12 Dollars ($1,000,000)per occurrence and an annual aggregate of Two Million
Dollars ($2,000,000). This policy shall be issued on a per occurrence basis.
13 COUNTY may require specific coverage including completed operations,
product liability, contractual liability, Explosion, Collapse, and Underground
14 (XCU), fire legal liability or any other liability insurance deemed necessary
15 because of the nature of the Agreement.
B. Automobile Liability
16 Comprehensive Automobile Liability Insurance with limits for bodily injury of
17 not less than Two Hundred Fifty Thousand Dollars ($250,000)per person, Five
Hundred Thousand Dollars ($500,000)per accident and for property damages of
18 not less than Two Hundred Fifty Thousand Dollars ($250,000), or such coverage
19 with a combined single limit of Five Hundred Thousand Dollars ($500,000).
Coverage should include owned and non-owned vehicles used in connection with
20 this Agreement.
21 C. Professional Liability
22 If CONTRACTOR employs licensed professional staff(e.g. Ph.D., R.N.,
23 L.C.S.W., M.F.C.C.) in providing services, Professional Liability Insurance with
limits of not less than One Million Dollars ($1,000,000)per occurrence, Three
24 Million Dollars ($3,000,000) annual aggregate.
25 If any of the required policies provide coverage on a claims-made basis:
26 1. The retroactive date must be shown and must be before the date of the
contract or the beginning of contract work.
27 2. Insurance must be maintained and evidence of insurance must be
28 provided for at least three (3) years after completion of the contract
services.
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1 3. If coverage is canceled or non-renewed, and not replaced with another
2 claims-made policy form with a retroactive date prior to the contract
effective date, the CONTRACTOR must purchase "extended reporting"
3 coverage for a minimum of three (3)years after completion of contract
work.
4
D. Worker's Compensation
5
A policy of Worker's Compensation Insurance as may be required by the
6 California Labor Code.
7
CONTRACTOR shall obtain endorsements to the Commercial General Liability
8
insurance naming the County of Fresno, its officers, agents, and employees, individually and
9
collectively, as additional insured,but only insofar as the operations under this Agreement are
10
concerned. Such coverage for additional insured shall apply as primary insurance and any other
11
insurance, or self-insurance, maintained by the COUNTY, its officers, agents and employees shall be
12
excess only and not contributing with insurance provided under the CONTRACTOR's policies herein.
13
This insurance shall not be cancelled or changed without a minimum of thirty (30) days advance
14
written notice given to COUNTY.
15
Within thirty (30) days from the date CONTRACTOR executes this Agreement,
16
CONTRACTOR shall provide certificates of insurance and endorsements as stated above for all of the
17
foregoing policies, as required herein, to the County of Fresno, Department of Public Health, P.O. Box
18
11867, Fresno, California, 93775, Attention: Contracts Section—6t'Floor, stating that such insurance
19
coverage have been obtained and are in full force; that the County of Fresno, its officers, agents and
20
employees will not be responsible for any premiums on the policies; that such Commercial General
21
Liability insurance names the County of Fresno, its officers, agents and employees, individually and
22
collectively, as additional insured, but only insofar as the operations under this Agreement are
23
concerned; that such coverage for additional insured shall apply as primary insurance and any other
24
insurance, or self-insurance, maintained by the COUNTY, its officers, agents and employees, shall be
25
excess only and not contributing with insurance provided under the CONTRACTOR's policies herein;
26
and that this insurance shall not be cancelled or changed without a minimum of thirty (30) days
27
advance, written notice given to COUNTY.
28
In the event CONTRACTOR fails to keep in effect at all times insurance coverage as
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1 herein provided, the COUNTY may, in addition to other remedies it may have, suspend or terminate
2 this Agreement upon the occurrence of such event.
3 All policies shall be with admitted insurers licensed to do business in the State of
4 California. Insurance purchased shall be from companies possessing a current A.M. Best, Inc. rating
5 of A FSC VII or better.
6 11. HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT
7 A. The parties to this Agreement shall be in strict conformance with all applicable
8 Federal and State of California laws and regulations, including but not limited to Sections 5328,
9 10850, and 14100.2 et seq. of the Welfare and Institutions Code, Sections 2.1 and 431.300 et seq. of
10 Title 42, Code of Federal Regulations (CFR), Section 56 et seq. of the California Civil Code and the
11 Health Insurance Portability and Accountability Act(HIPAA), including but not limited to Section
12 1320 D et seq. of Title 42,United States Code (USC) and its implementing regulations, including, but
13 not limited to Title 45, CFR, Sections 142, 160, 162, and 164, The Health Information Technology for
14 Economic and Clinical Health Act(HITECH) regarding the confidentiality and security of patient
15 information, and the Genetic Information Nondiscrimination Act(GINA) of 2008 regarding the
16 confidentiality of genetic information.
17 Except as otherwise provided in this Agreement, CONTRACTOR, as a Business
18 Associate of COUNTY, may use or disclose Protected Health Information(PHI) to perform functions,
19 activities or services for or on behalf of COUNTY, as specified in this Agreement,provided that such
20 use or disclosure shall not violate the Health Insurance Portability and Accountability Act(HIPAA),
21 USC 1320d et seq. The uses and disclosures of PHI may not be more expansive than those applicable
22 to COUNTY, as the "Covered Entity"under the HIPAA Privacy Rule (45 CFR 164.500 et seq.),
23 except as authorized for management, administrative or legal responsibilities of the Business
24 Associate.
25 B. CONTRACTOR, including its subcontractors and employees, shall protect, from
26 unauthorized access, use, or disclosure of names and other identifying information, including genetic
27 information, concerning persons receiving services pursuant to this Agreement, except where
28 permitted in order to carry out data aggregation purposes for health care operations [45 CFR Sections
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1 164.504 (e)(2)(i), 164.504 (3)(2)(ii)(A), and 164.504 (e)(4)(i)] This pertains to any and all persons
2 receiving services pursuant to a COUNTY funded program. This requirement applies to electronic
3 PHI. CONTRACTOR shall not use such identifying information or genetic information for any
4 purpose other than carrying out CONTRACTOR's obligations under this Agreement.
5 C. CONTRACTOR, including its subcontractors and employees, shall not disclose
6 any such identifying information or genetic information to any person or entity, except as otherwise
7 specifically permitted by this Agreement, authorized by Subpart E of 45 CFR Part 164 or other law,
8 required by the Secretary, or authorized by the client/patient in writing. In using or disclosing PHI
9 that is permitted by this Agreement or authorized by law, CONTRACTOR shall make reasonable
10 efforts to limit PHI to the minimum necessary to accomplish intended purpose of use, disclosure or
11 request.
12 D. For purposes of the above sections, identifying information shall include, but not
13 be limited to name, identifying number, symbol, or other identifying particular assigned to the
14 individual, such as finger or voice print, or photograph.
15 E. For purposes of the above sections, genetic information shall include genetic
16 tests of family members of an individual or individual, manifestation of disease or disorder of family
17 members of an individual, or any request for or receipt of, genetic services by individual or family
18 members. Family member means a dependent or any person who is first, second, third, or fourth
19 degree relative.
20 F. CONTRACTOR shall provide access, at the request of COUNTY, and in the
21 time and manner designated by COUNTY, to PHI in a designated record set(as defined in 45 CFR
22 Section 164.501), to an individual or to COUNTY in order to meet the requirements of 45 CFR
23 Section 164.524 regarding access by individuals to their PHI. With respect to individual requests,
24 access shall be provided within thirty(30) days from request. Access may be extended if
25 CONTRACTOR cannot provide access and provides individual with the reasons for the delay and the
26 date when access may be granted. PHI shall be provided in the form and format requested by the
27 individual or COUNTY.
28 CONTRACTOR shall make any amendment(s)to PHI in a designated record set
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1 at the request of COUNTY or individual, and in the time and manner designated by COUNTY in
2 accordance with 45 CFR Section 164.526.
3 CONTRACTOR shall provide to COUNTY or to an individual, in a time and
4 manner designated by COUNTY, information collected in accordance with 45 CFR Section 164.528,
5 to permit COUNTY to respond to a request by the individual for an accounting of disclosures of PHI
6 in accordance with 45 CFR Section 164.528.
7 G. CONTRACTOR shall report to COUNTY, in writing, any knowledge or
8 reasonable belief that there has been unauthorized access, viewing, use, disclosure, security incident,
9 or breach of unsecured PHI not permitted by this Agreement of which it becomes aware, immediately
10 and without reasonable delay and in no case later than two (2)business days of discovery. Immediate
11 notification shall be made to COUNTY's Information Security Officer and Privacy Officer and
12 COUNTY's DPH HIPAA Representative,within two (2)business days of discovery. The notification
13 shall include, to the extent possible, the identification of each individual whose unsecured PHI has
14 been, or is reasonably believed to have been, accessed, acquired, used, disclosed, or breached.
15 CONTRACTOR shall take prompt corrective action to cure any deficiencies and any action pertaining
16 to such unauthorized disclosure required by applicable Federal and State Laws and regulations.
17 CONTRACTOR shall investigate such breach and is responsible for all notifications required by law
18 and regulation or deemed necessary by COUNTY and shall provide a written report of the
19 investigation and reporting required to COUNTY's Information Security Officer and Privacy Officer
20 and COUNTY's DPH HIPAA Representative. This written investigation and description of any
21 reporting necessary shall be postmarked within the thirty(30)working days of the discovery of the
22 breach to the addresses below:
23 County of Fresno County of Fresno County of Fresno
24 Dept. of Public Health Dept. of Public Health Information Technology Services
HIPAA Representative Privacy Officer Information Security Officer
25 (559) 600-6439 (559) 600-6405 (559) 600-5800
P.O. Box 11867 P.O. Box 11867 2048 N. Fine Street
26 Fresno, CA 93775 Fresno, CA 93775 Fresno, CA 93727
27 H. CONTRACTOR shall make its internal practices,books, and records relating to
28 the use and disclosure of PHI received from COUNTY, or created or received by the CONTRACTOR
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1 on behalf of COUNTY, in compliance with HIPAA's Privacy Rule, including, but not limited to the
2 requirements set forth in Title 45, CFR, Sections 160 and 164. CONTRACTOR shall make its
3 internal practices,books, and records relating to the use and disclosure of PHI received from
4 COUNTY, or created or received by the CONTRACTOR on behalf of COUNTY, available to the
5 United States Department of Health and Human Services (Secretary)upon demand.
6 CONTRACTOR shall cooperate with the compliance and investigation reviews
7 conducted by the Secretary. PHI access to the Secretary must be provided during the
8 CONTRACTOR's normal business hours, however,upon exigent circumstances access at any time
9 must be granted. Upon the Secretary's compliance or investigation review, if PHI is unavailable to
10 CONTRACTOR and in possession of a Subcontractor, it must certify efforts to obtain the information
11 to the Secretary.
12 I. Safeguards
13 CONTRACTOR shall implement administrative, physical, and technical
14 safeguards as required by the HIPAA Security Rule, Subpart C of 45 CFR 164, that reasonably and
15 appropriately protect the confidentiality, integrity, and availability of PHI, including electronic PHI,
16 that it creates, receives, maintains or transmits on behalf of COUNTY and to prevent unauthorized
17 access, viewing, use, disclosure, or breach of PHI other than as provided for by this Agreement.
18 CONTRACTOR shall conduct an accurate and thorough assessment of the potential risks and
19 vulnerabilities to the confidential, integrity and availability of electronic PHI. CONTRACTOR shall
20 develop and maintain a written information privacy and security program that includes administrative,
21 technical and physical safeguards appropriate to the size and complexity of CONTRACTOR's
22 operations and the nature and scope of its activities. Upon COUNTY's request, CONTRACTOR shall
23 provide COUNTY with information concerning such safeguards.
24 CONTRACTOR shall implement strong access controls and other security
25 safeguards and precautions in order to restrict logical and physical access to confidential,personal
26 (e.g., PHI) or sensitive data to authorized users only. Said safeguards and precautions shall include
27 the following administrative and technical password controls for all systems used to process or store
28 confidential, personal, or sensitive data:
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1 1. Passwords must not be:
2 a. Shared or written down where they are accessible or recognizable
3 by anyone else; such as taped to computer screens, stored under keyboards, or visible in a work area;
4 b. A dictionary word; or
5 C. Stored in clear text
6 2. Passwords must be:
7 a. Eight(8) characters or more in length;
8 b. Changed every ninety (90) days;
9 C. Changed immediately if revealed or compromised; and
10 d. Composed of characters from at least three (3) of the following
11 four(4) groups from the standard keyboard:
12 1) Upper case letters (A-Z);
13 2) Lowercase letters (a-z);
14 3) Arabic numerals (0 through 9); and
15 4) Non-alphanumeric characters (punctuation symbols).
16 CONTRACTOR shall implement the following security controls on each
17 workstation or portable computing device (e.g., laptop computer) containing confidential,
18 personal, or sensitive data:
19 1. Network-based firewall and/or personal firewall;
20 2. Continuously updated anti-virus software; and
21 3. Patch management process including installation of all operating
22 system/software vendor security patches.
23 CONTRACTOR shall utilize a commercial encryption solution that has received
24 FIPS 140-2 validation to encrypt all confidential,personal, or sensitive data stored on portable
25 electronic media(including, but not limited to, compact disks and thumb drives) and on portable
26 computing devices (including, but not limited to, laptop and notebook computers).
27 CONTRACTOR shall not transmit confidential,personal, or sensitive data via e-
2 8 mail or other internet transport protocol unless the data is encrypted by a solution that has been
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1 validated by the National Institute of Standards and Technology(MIST) as conforming to the
2 Advanced Encryption Standard(AES) Algorithm. CONTRACTOR must apply appropriate sanctions
3 against its employees who fail to comply with these safeguards. CONTRACTOR must adopt
4 procedures for terminating access to PHI when employment of employee ends.
5 J. Mitigation of Harmful Effects
6 CONTRACTOR shall mitigate, to the extent practicable, any harmful effect that
7 is suspected or known to CONTRACTOR of an unauthorized access, viewing, use, disclosure, or
8 breach of PHI by CONTRACTOR or its subcontractors in violation of the requirements of these
9 provisions. CONTRACTOR must document suspected or known harmful effects and the outcome.
10 K. CONTRACTOR's Subcontractors
11 CONTRACTOR shall ensure that any of its contractors, including
12 subcontractors, if applicable, to whom CONTRACTOR provides PHI received from or created or
13 received by CONTRACTOR on behalf of COUNTY, agree to the same restrictions, safeguards, and
14 conditions that apply to CONTRACTOR with respect to such PHI and to incorporate, when
15 applicable, the relevant provisions of these provisions into each subcontract or sub-award to such
16 agents or subcontractors..
17 L. Employee Training and Discipline
18 CONTRACTOR shall train and use reasonable measures to ensure compliance
19 with the requirements of these provisions by employees who assist in the performance of functions or
20 activities on behalf of COUNTY under this Agreement and use or disclose PHI and discipline such
21 employees who intentionally violate any provisions of these provisions, including termination of
22 employment.
23 M. Termination for Cause
24 Upon COUNTY's knowledge of a material breach of these provisions by
25 CONTRACTOR, COUNTY shall either:
26 1. Provide an opportunity for CONTRACTOR to cure the breach or end the
27 violation and terminate this Agreement if CONTRACTOR does not cure the breach or end the
28 violation within the time specified by COUNTY; or
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1 2. Immediately terminate this Agreement if CONTRACTOR has breached a
2 material term of these provisions and cure is not possible.
3 3. If neither cure nor termination is feasible, the COUNTY's Privacy
4 Officer shall report the violation to the Secretary of the U.S. Department of Health and Human
5 Services.
6 N. Judicial or Administrative Proceedings
7 COUNTY may terminate this Agreement in accordance with the terms and
8 conditions of this Agreement as written hereinabove, if: (1) CONTRACTOR is found guilty in a
9 criminal proceeding for a violation of the HIPAA Privacy or Security Laws or the HITECH Act; or(2)
10 a finding or stipulation that the CONTRACTOR has violated a privacy or security standard or
11 requirement of the HITECH Act, HIPAA or other security or privacy laws in an administrative or civil
12 proceeding in which the CONTRACTOR is a party.
13 O. Effect of Termination
14 Upon termination or expiration of this Agreement for any reason,
15 CONTRACTOR shall return or destroy all PHI received from COUNTY (or created or received by
16 CONTRACTOR on behalf of COUNTY) that CONTRACTOR still maintains in any form, and shall
17 retain no copies of such PHI. If return or destruction of PHI is not feasible, it shall continue to extend
18 the protections of these provisions to such information, and limit further use of such PHI to those
19 purposes that make the return or destruction of such PHI infeasible. This provision shall apply to PHI
20 that is in the possession of subcontractors or agents, if applicable, of CONTRACTOR. If
21 CONTRACTOR destroys the PHI data, a certification of date and time of destruction shall be
22 provided to the COUNTY by CONTRACTOR.
23 P. Disclaimer
24 COUNTY makes no warranty or representation that compliance by
25 CONTRACTOR with these provisions, the HITECH Act, HIPAA or the HIPAA regulations will be
26 adequate or satisfactory for CONTRACTOR's own purposes or that any information in
27 CONTRACTOR's possession or control, or transmitted or received by CONTRACTOR, is or will be
28 secure from unauthorized access, viewing,use, disclosure, or breach. CONTRACTOR is solely
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1 responsible for all decisions made by CONTRACTOR regarding the safeguarding of PHI.
2 Q. Amendment
3 The parties acknowledge that Federal and State laws relating to electronic data
4 security and privacy are rapidly evolving and that amendment of these provisions may be required to
5 provide for procedures to ensure compliance with such developments. The parties specifically agree
6 to take such action as is necessary to amend this agreement in order to implement the standards and
7 requirements of HIPAA, the HIPAA regulations, the HITECH Act and other applicable laws relating
8 to the security or privacy of PHI. COUNTY may terminate this Agreement upon thirty (30) days
9 written notice in the event that CONTRACTOR does not enter into an amendment providing
10 assurances regarding the safeguarding of PHI that COUNTY in its sole discretion, deems sufficient to
11 satisfy the standards and requirements of HIPAA, the HIPAA regulations and the HITECH Act.
12 R. No Third-Party Beneficiaries
13 Nothing express or implied in the terms and conditions of these provisions is intended to confer, nor
14 shall anything herein confer, upon any person other than COUNTY or CONTRACTOR and their
15 respective successors or assignees, any rights, remedies, obligations or liabilities whatsoever.
16 S. Interpretation
17 The terms and conditions in these provisions shall be interpreted as broadly as
18 necessary to implement and comply with HIPAA, the HIPAA regulations and applicable State laws.
19 The parties agree that any ambiguity in the terms and conditions of these provisions shall be resolved
20 in favor of a meaning that complies and is consistent with HIPAA and the HIPAA regulations.
21 T. Regulatory References
22 A reference in the terms and conditions of these provisions to a section in the
23 HIPAA regulations means the section as in effect or as amended.
24 U. Survival
25 The respective rights and obligations of CONTRACTOR as stated in this Section
26 shall survive the termination or expiration of this Agreement.
27 V. No Waiver of Obligations
28 No change, waiver or discharge of any liability or obligation hereunder on any
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1 one or more occasions shall be deemed a waiver of performance of any continuing or other obligation,
2 or shall prohibit enforcement of any obligation on any other occasion.
3 12. DATA SECURITY
4 For the purpose of preventing the potential loss, misappropriation or inadvertent
5 access, viewing, use or disclosure of COUNTY data including sensitive or personal client information;
6 abuse of COUNTY resources; and/or disruption to COUNTY operations, individuals and/or agencies
7 that enter into a contractual relationship with the COUNTY for the purpose of providing services
8 under this Agreement must employ adequate data security measures to protect the confidential
9 information provided to CONTRACTOR by the COUNTY, including but not limited to the following:
10 A. CONTRACTOR-Owned Mobile, Wireless, or Handheld Devices
11 CONTRACTOR may not connect to COUNTY networks via personally-owned
12 mobile,wireless or handheld devices,unless the following conditions are met:
13 1) CONTRACTOR has received authorization by COUNTY for
14 telecommuting purposes;
15 2) Current virus protection software is in place;
16 3) Mobile device has the remote wipe feature enabled; and
17 4) A secure connection is used.
18 B. CONTRACTOR-Owned Computers or Computer Peripherals
19 CONTRACTOR may not bring CONTRACTOR-owned computers or computer
20 peripherals into the COUNTY for use without prior authorization from the COUNTY's Chief
21 Information Officer, and/or designee(s), including but not limited to mobile storage devices. If data is
22 approved to be transferred, data must be stored on a secure server approved by the COUNTY and
23 transferred by means of a Virtual Private Network(VPN) connection, or another type of secure
24 connection. Said data must be encrypted.
25 C. COUNTY-Owned Computer Equipment
26 CONTRACTOR or anyone having an employment relationship with the
27 COUNTY, may not use COUNTY computers or computer peripherals on non-COUNTY premises
28 without prior authorization from the COUNTY's Chief Information Officer, and/or designee(s).
- 16 - COUNTY OF FRESNO
Fresno,CA
1 D. CONTRACTOR may not store COUNTY's private, confidential or sensitive
2 data on any hard-disk drive,portable storage device, or remote storage installation unless encrypted.
3 E. CONTRACTOR shall be responsible to employ strict controls to ensure the
4 integrity and security of COUNTY's confidential information and to prevent unauthorized access,
5 viewing,use or disclosure of data maintained in computer files,program documentation, data
6 processing systems, data files and data processing equipment which stores or processes COUNTY
7 data internally and externally.
8 F. Confidential client information transmitted to one party by the other by means of
9 electronic transmissions must be encrypted according to Advanced Encryption Standards (AES) of
10 128 BIT or higher. Additionally, a password or pass phrase must be utilized.
11 G. CONTRACTOR is responsible to immediately notify COUNTY of any
12 violations, breaches or potential breaches of security related to COUNTY's confidential information,
13 data maintained in computer files, program documentation, data processing systems, data files and
14 data processing equipment which stores or processes COUNTY data internally or externally.
15 H. COUNTY shall provide oversight to CONTRACTOR's response to all incidents
16 arising from a possible breach of security related to COUNTY's confidential client information
17 provided to CONTRACTOR. CONTRACTOR will be responsible to issue any notification to
18 affected individuals as required by law or as deemed necessary by COUNTY in its sole discretion.
19 CONTRACTOR will be responsible for all costs incurred as a result of providing the required
20 notification.
21 13. NON-DISCRIMINATION
22 During the performance of this Agreement, CONTRACTOR shall not unlawfully
23 discriminate against any employee or applicant for employment, or recipient of services, because of
24 race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical
25 condition, genetic information, marital status, sex, gender, gender identity, gender expression, age,
26 sexual orientation, or military or veteran status pursuant to all applicable State of California and
27 Federal statutes and regulations.
28
17 - COUNTY OF FRESNO
Fresno,CA
1 14. DISCLOSURE OF SELF-DEALING TRANSACTIONS
2 This provision is only applicable if the CONTRACTOR is operating as a corporation (a
3 for-profit or non-profit corporation) or if during the term of this agreement, the CONTRACTOR
4 changes its status to operate as a corporation.
5 Members of the CONTRACTOR's Board of Directors shall disclose any self-dealing
6 transactions that they are a party to while CONTRACTOR is providing goods or performing services
7 under this agreement. A self-dealing transaction shall mean a transaction to which the
8 CONTRACTOR is a party and in which one or more of its directors has a material financial interest.
9 Members of the Board of Directors shall disclose any self-dealing transactions that they are a party to
10 by completing and signing a Self-Dealing Transaction Disclosure Form, attached hereto as Exhibit A
11 and incorporated herein by reference, and submitting it to the COUNTY prior to commencing with the
12 self-dealing transaction or immediately thereafter.
13 15. LICENSES/CERTIFICATION
14 CONTRACTOR shall throughout the term of this Agreement, maintain all necessary
15 licenses,permits, certificates, and board registrations necessary for the provision of the services
16 hereunder and required by the laws and regulations of the United States of America, State of
17 California, Fresno County and any other applicable government agencies. CONTRACTOR shall
18 notify COUNTY immediately in writing of its inability to obtain or maintain such licenses,permits,
19 certificates, and board registrations, irrespective of the pendency of any appeal related thereto.
20 Additionally, CONTRACTOR shall comply with all other applicable laws, rules or regulations, as any
21 may now exist or be hereafter changed.
22 16. AUDITS AND INSPECTIONS
23 CONTRACTOR shall at any time during business hours, and as often as the COUNTY
24 may deem necessary, make available to the COUNTY for examination all of its records and data with
25 respect to the matters covered by this Agreement. CONTRACTOR shall, upon request by the
26 COUNTY,permit the COUNTY to audit and inspect all such records and data necessary to ensure
27 CONTRACTOR's compliance with the terms of this Agreement.
28 If this Agreement exceeds Ten Thousand and No/100 Dollars ($10,000.00),
- 18 - COUNTY OF FRESNO
Fresno,CA
1 CONTRACTOR shall be subject to the examination and audit of the State Auditor for a period of
2 three (3)years after final payment under contract(Government Code Section 8546.7).
3 17. NOTICES
4 The persons and their addresses having authority to give and receive notices under this
5 Agreement include the following:
6 COUNTY CONTRACTOR
7 Director, County of Fresno Godfred L. Masinde, PhD.
8 Department of Public Health 700 Cabada Drive
P.O. Box 11867 Brentwood, CA 94513
g Fresno, CA 93775
10 Any and all notices between the COUNTY and the CONTRACTOR provided for or
11 permitted under this Agreement or by law shall be in writing and shall be deemed duly served when
12 personally delivered to one of the parties, or in lieu of such personal service, when deposited in the
13 United States Mail,postage prepaid, addressed to such party.
14 18. GOVERNING LAW
15 The parties agree, that for the purposes of venue, performance under this Agreement is
16 to be in Fresno County, California.
17 The rights and obligations of the parties and all interpretation and performance of this
18 Agreement shall be governed in all respects by the laws of the State of California.
19 19. SEVERABILITY
20 The provisions of this Agreement are severable. The invalidity or unenforceability of
21 any one provision in the Agreement shall not affect the other provisions.
22 20. ENTIRE AGREEMENT
23 This Agreement, including all Exhibits, constitutes the entire agreement between the
24 CONTRACTOR and COUNTY with respect to the subject matter hereof and supersedes all previous
25 Agreement negotiations, proposals, commitments, writings, advertisements, publications, and
26 understanding of any nature whatsoever unless expressly included in this Agreement.
27
28
19 - COUNTY OF FRESNO
Fresno,CA
1 IN WITNESS WHEREOF,the parties hereto have executed this Agreement as of the
2 day and year first hereinabove written.
3 CONTRACTOR: COUNTY OF FRESNO:
4' GODFRED L.MASINDE,PhD
S QuQero, hairperson of the Board of
6 S he County of Fresno
. 7
Mailing Address:
a
8 Y�reaipa;C--99� e�
9 :-00 CA-NAO)P�' �-
10 ,j T--; v v r Ar ATTEST:
BERNICE E. SEIDEL
CLERK OF THE BOARD OF SUPERVISORS
COUNTY OF FRESNO,STATE OF CALIFORNIA
12
13 By:
14
15 (l�.
Deputy
16
17
18 FOR ACCOUNTING USE ONLY:
19
Fund No: 0001
20 Subclass: 10000
21 Organization: 56201620
Account#: 7295
22
23
24
25
26
27
28
20 - COUNTY OF FRESNO
Fresno,CA
Exhibit A
SELF-DEALING TRANSACTION DISCLOSURE FORM
In order to conduct business with the County of Fresno (hereinafter referred to as "County"), members
of a contractor's board of directors (hereinafter referred to as "County Contractor"), must disclose any
self-dealing transactions that they are a party to while providing goods, performing services, or both
for the County. A self-dealing transaction is defined below:
"A self-dealing transaction means a transaction to which the corporation is a party and in which one
or more of its directors has a material financial interest."
The definition above will be utilized for purposes of completing this disclosure form.
INSTRUCTIONS
(1) Enter board member's name,job title (if applicable), and date this disclosure is being made.
(2) Enter the board member's company/agency name and address.
(3) Describe in detail the nature of the self-dealing transaction that is being disclosed to the
County. At a minimum, include a description of the following:
a. The name of the agency/company with which the Corporation has the transaction;
and
b. The nature of the material financial interest in the Corporation's transaction that the
board member has.
(4) Describe in detail why the self-dealing transaction is appropriate based on applicable
provisions of the Corporations Code.
(5) Form must be signed by the board member that is involved in the self-dealing transaction
described in Sections (3) and (4).
Page 1 of 2
Exhibit A
(1)Company Board Member Information:
Name: Date:
Job Title:
(2)Company/Agency Name and Address:
(3)Disclosure(Please describe the nature of the self-dealing transaction you are a party to):
(4)Explain why this self-dealing transaction is consistent with the requirements of Corporations Code 5233(a):
(5)Authorized Signature
Signature: Date:
Page 2 of 2